COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

RULING ON HUDSON PUBLIC SCHOOLS’ MOTION FOR SUMMARY JUDGMENT

BACKGROUND

Sam is a fifth grade special education student in the Hudson Public Schools who functions under an Individual Education Plan (IEP). On December 2, 2008 Parents requested that Hudson Public Schools (HPS) fund an Independent Educational Evaluation (IEE) for Sam. Parents specifically requested HPS to fund a Functional Behavioral Analysis (FBA). On December 8, 2008 HPS filed a hearing request in response to Parents’ request for an IEE/FBA and a hearing date was set for December 30, 2008. On December 17, 2008 HPS requested a postponement of the December 30, 2008 hearing date (Christmas vacation) and also requested a Pre-Hearing Conference Call (PHCC). On December 18, 2008 Parents filed a response to HPS’ hearing request. On December 19, 2008 the Hearing Officer granted HPS’ postponement request and scheduled a PHCC for January 6, 2009 which took place on that date. During the PHCC HPS and Parents expressed a willingness to try to resolve the single issue of this case. The parties then entered into settlement negotiations, filing several status reports with the Hearing Officer regarding their situation.

On March 4, 2009 Parents requested a PHCC and on March 5, 2009 the Hearing Officer scheduled a PHCC for March 11, 2009 which took place on that date. Parties indicated that they had been unable to come to a resolution. HPS indicated that it would be filing a Motion For Summary Judgment (MSJ) and Parents indicated that they would oppose such a motion. The parties agreed to a telephonic motion session for April 8, 2009. HPS submitted its MSJ on March 23, 2009. Parents submitted their Opposition to said motion on March 27, 2009. On March 30, 2009 the telephonic motion session was changed to April 9, 2009 and took place on that date.

STATEMENT OF POSITIONS

HPS’ position is that all of its evaluations of Sam in other areas i.e. occupational therapy (OT), physical therapy (PT), and assistive technology (AT), were complete and appropriate at the time they were conducted and have since been supplemented by IEE’s in the areas of OT, PT, and AT. However, HPS has never done an FBA of Sam. Further, Parents have never requested that HPS conduct an FBA of Sam. In response to Parents’ request for a IEE/FBA for Sam, without debating whether an FBA is even necessary, HPS is willing to conduct its own FBA of Sam which Parents have refused. HPS asserts that the right to seek a publicly funded IEE is premised upon Parents’ disagreement with a school evaluation. HPS states that if Parents will consent to HPS’ performing an FBA for Sam and Parents then disagree with HPS’ FBA, only then can Parent request a publicly funded IEE/FBA. HPS asserts that it has the right to conduct the requested FBA with its own evaluator/evaluator of its choosing before Parents are entitled to a publicly funded IEE. HPS’ MSJ asserts that thee are no genuine issues of material fact and that HPS is entitled to prevail as a matter of law.

Parents’ position is that HPS identified an area of concern with Sam (behaviors) which they did not evaluate or raise as an issue to Parents, but placed on Sam’s IEP. Based upon this, Parents contend that HPS waived its right to conduct its own FBA of Sam. Parents, as respondents in this case, seek an order for HPS to fund an IEE/FBA of Sam by an evaluator of Parents’ choosing.

(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency , subject to the conditions in paragraphs (b)(2) through (4) of this section.

(2) If a parent requests an independent education evaluation at public expense, the public agency must, without unnecessary delay , either –

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate ; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.

(3) If the public agency files a due process complaint notice to request a hearing and the final decision is that the agency’s evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not a public expense.

(4) If a parent requests an independent educational evaluation, the public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or requesting a due process hearing to defend the public evaluation. Emphasis added.

MASSACHUSETTS LAW AT ISSUE

M.G.L. c. 71B s. 3 provides, in pertinent part:

Upon completion of said (school’s) evaluation, the child’s parents may obtain an independent evaluation at school committee expense , from child evaluation clinics or facilities approved by the department jointly with the departments of mental health, mental retardation and public health, provided that the school committee may initiate within five school working days of the request, a hearing with the bureau of special education appeals to show that its evaluation is appropriate, in accordance with the provisions of the Individuals with Disabilities Education Act and regulations promulgated, pursuant thereto; Emphasis added.

(5) Independent education evaluations. Upon receipt of evaluation results, if a parent disagrees with an initial evaluation or reevaluation completed by the school district, then the parent may request an independent education evaluation ….. Emphasis added.

RULING

HPS’ Motion For Summary Judgment is GRANTED .

My analysis follows.

Based upon the above-cited statutes and regulations both state and federal special education law specify that a precondition of parents’ right to an IEE is that the school has already done its own evaluation. If parents disagree with the school’s evaluation they may then request a school funded IEE. The school must then either fund the IEE or request a hearing before the BSEA. Indeed, this is exactly what has already happened between Parents and HPS regarding Sam in the evaluative areas of OT, PT and AT. State and federal special education law both provide for the school to initially perform evaluations of students in areas of suspected disability using evaluators chosen by the school. The whole concept of an IEE is that if parents disagree with the evaluations performed by the school, they then have the right to seek a publicly funded IEE as, essentially, a second opinion. In this case, Parents refuse to allow HPS to conduct an FBA in the first instance but request that HPS fund an IEE with an evaluator chosen by Parents. I conclude that such is clearly contrary to the mandates of state and federal special education law.

Federal Courts have consistently interpreted the IDEA to provide for schools to first evaluate students using evaluators of the school’s choice. See Andress v. Cleveland Independent School District 64 F. 3d 176 (5 th Cir 1995). This has also been the consistent interpretation of the BSEA:

It is a well established tenant in special education law that schools are entitled to seek advice of their own employees prior to parents obtaining a second opinion, known as an independent evaluation under state and federal special education law. In re: Hampden-Wilbraham Regional School District 105 LRP 461155; 11 MSER 238 (2005).

See also In re Groton-Dunstable Regional School District 13 MSER 210 (2007); In re: Abington Public Schools 11 MSER 16 (2004); In re: Marblehead Public Schools 7 MSER 176 (2001).

Based upon both state and federal special education statutes and regulations and Court and BSEA decisions interpreting same, I conclude that HPS is entitled to conduct its own FBA of Sam utilizing professionals of its own choice before Parents would have the right to request an IEE. Only if Parents consent to HPS’ conducting its own FBA, and after said evaluation with same, does Parents’ right to request an IEE arise.

About Special Education Law

Special Education Law (specialedlaw.com) is a free search engine for Massachusetts Bureau of Special Education Appeals (BSEA) decisions and rulings. It was created by Attorney Daniel S. Perlman and is maintained by Moor, Perlman and Gregg, LLC as a resource for parents, advocates, educators, and attorneys.

You can earn more about Attorney Perlman and his partners at www.mpgfirm.com.